Daily Development for
Tuesday, November 5, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

Note that there are two reports below on separate issues raised in one case.

SERVITUDES; COVENANTS; USE RESTRICTIONS; ARCHITECTURAL APPROVAL: Restrictions providing that association may "disapprove the design, finishing or painting of any construction that is not suitable or desirable for any reason, aesthetic or otherwise" does not in fact confer unlimited discretion on association, but association is limited only to enforcement of specific limits on minimum square footage, height and setback.

Riss v. Angel, 912 P.2d 1028 (Wash. App. 1996)

The court distinguished Washington and out of state precedent upholding plainly worded broad aesthetic restrictions or other discretionary controls. Here, the broad language was not enforceable because of more specific limitations contained in other parts of the restrictions and because the court viewed its function to be to construe any ambiguity in the document "against the drafter." In this case, since the association, after its formation, had revised this section of the restrictions. Therefore, the court viewed the association itself, and not the developer, as the drafter.

In another interesting discussion, the court concludes that it need not review the association's decision on the basis of the evidence and testimony actually heard, but rather on all evidence that might be relevant to the reasonableness of the association's decision to limit the homeowner's construction. It states:

"The homeowners' argument flows from the assertion that the court should have treated them as it does governmental entities under the APA. Since they are not a government, the proceedings before the board do not constitute an administrative record."

Comment: Although the court does not give us the complete language of the declaration containing the restrictions at issue, the court's own description of the content of the restrictions creates substantial doubt as to the court's conclusion that the probable intent of the drafters was to limit the association's discretion to the specific measured restrictions on size, height and setback.

Even given the traditional broad review of residential restrictions that courts have abrogated to themselve, the court seems to be lurching far beyond the logical limits of its discretion, and, what's worse, hiding behind sophistic distinctions of prior authority that leave us and the Washington trial courts with no clear understanding of whether any discretionary language will be enforced in the future.

OWNER'S ASSOCIATIONS; LIABILITY: Association members jointly and severally liable for damages resulting from board's wrongful refusal to approve lot owner's building plans, regardless of how individual members voted on the issue. Riss v. Angel, 912 P.2d 1028 (Wash. App. 1996).

The case at one point indicates that the Association Board actually made the decision to disapprove the owner's plans, but at another point discusses the question of the votes cast by individual association members. Thus it is unclear whether the total association voted on the contested decision. But the language of the court in holding the association suggests that this issue doesn't matter. It indicates that each member of a voluntary association is liable for the torts of that association, regardless of how they voted in connection with the association's actions.

In this case, the plaintiffs had extended to each homeowner the opportunity to be dismissed from their lawsuit in exchange for an agreement not to oppose the plaintiffs' building plans. The court notes this in its analysis, but does not indicate whether it matters in the final result.

Comment: Following this decision, every homeowner's association interested in enforcing use restrictions should be incorporated and insured.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org

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